# Petition for Writ of Certiorari — Maruca v. Colorado

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1605%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1995
- **Citation:** 516 U.S. 914

## Text

95 206 AUC 0 41995

OFFICE OF THE CLERK

In The
SUPREME COURT OF THE UNITED STATES

October Term, 1995

PERRY MARUCA,

Petitioner,
VS.

THE PEOPLE OF THE STATE OF COLORADO,
Respondent.

PETITION FOR WRIT OF CERTIORARI TO
THE COLORADO COURT OF APPEALS

Scotr H. RoBINSON

GERASH, Rosinson & MIRANDA, P.C.
1439 Court Place

Denver, Colorado 80202
Telephone (303) 825-5400
Attorney for Petitioner

Perry Maruca

A Great American Print Shop ¢ (303) 825-7975

QUESTIONS PRESENTED FOR #EVIEW

1. Whether the admission of incriminating
statements and evidentiary observations procured
through custodial interrogation in violation of Miranda
can be admitted in a state criminal proceeding under a
“voluntariness” theory, in overt disregard of this Court’s
opinion in Michigan v. Mosley 423 U.S. 96, 96 S.Ct. 321,
46 L.Ed.2d 31° (1975)?

2. Whether the admission of evidence derived
directly from a Miranda violation is “harmless error”
where the resultant testimony included an alleged
acknowledgement of wrongdoing by the accused and
contradictory statements concerning the complaining
witness’ conduct?

|

il
TABLE OF CONTENTS

Pages
Questions Presented For Review ............cc.cccseeeeeees i
eee OF CIES ic ice cooeeeeeeee ll
eae OC AUR os cdiccn tein ili
COEDS TIGIO basctcens cosocsstintccccesssessencee 1
COTO. ii eiciciccicinicrs nisi 2
Constitutional Provisions and Statutes ................ 2
tatomnent OF Ce CMGO os ncicusscdscsttsmsseirnivetenpaanin 2
PRG bv cisveinsccticstriisceroternrega eee 4

Appendices:
Appendix A: Colorado Court of Appeals Opinion App 1
Appendix B: Colorado Court of Appeals Order App 7

Appendix C: Colorado Supreme Court Order App 8

TABLE OF AUTHORITIES

Cases
Arizona v. Fulminante, 490 U.S. 279,292-294.
111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) ....

Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct.
3138, 82 L.Ed.2d 317 (1984)....................

Bruton v. United States, 391 U.S. 123, 88 S.Ct
1620, 20 L.Ed.2d 476 (1968)...............

Chapman v. California, 368 U.S. 18, 87 S.Ct
824, 17 L.Ed.2d 705 (1967)..............

Colorado v. Connelly, 479 U.S. 157, 165, 107 S.Ct
515, 93 L.Ed.2d 473 (1986)........

Edwards v. Arizona, 451 U.S. 477, 484, 101 S.Ct
1880, 68 L.Ed.2d 378 (1981)

Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319,
75 L.Ed.2d 229 (1983).............

Lego v. Twomey, 404 U.S. 477, 488, 92 S.Ct. 619,
30 L.Ed.2d 618 (1972)............

Michigan v. Harvey, 494 U.S. 344, 110 S.Ct. 1176,
108 L.Ed.2d 293 (1990)............

Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321,
46 L.Ed.2d 313 (1975)......................

Minnick v. Mississippi, 498 U.S. 146, 151, 111 S.Ct
486, 112 L.Ed.2d 489 (1990).............

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602
16 L.Ed.2d 694 (1966) ....................

Pages

1]

Passim

iv

New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626,
ee Ree MIT IIT custeicncsiesossecchccameeanbensianniaabonebeinaditeaualsdadauacalace 10

Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830,
Ee i Cote nieletee ee a 10

Oregon v. Elstad, 470 U.S. 298, 307, 105 S. Ct. 1285,
ee a Ne SE GI icnheseuntrvcconcseescciuisciieemeuscbcases ekadebedbiabinnaasess g

Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct.
ey Pe Race GPE 6 IED siiccx-ecissccnstdsaboneinisidadeateincctaasesceasesemsideemmanaate 10

Sullivan v. Lousiana, 508 U.S.__ 113 S.Ct.__,
+ 3B R 8 ft: Ree eR eee eon ee 13

United States Constitution:
ra ee ee 2

United States Code:
Se I: Oe bs ea ed eat 2

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1995

PERRY MARUCA,
Petitioner,
VS.

THE PEOPLE OF THE STATE OF COLORADO,
Respondent.

PETITION FOR WRIT OF CERTIORARI TO
THE COLORADO COURT OF APPEALS

OPINION BELOW

The opinion of the Colorado Court of Appeals is
set forth in the Appendix, as is a copy of the Order
denying the copy of the appeals court denial of rehearing,
and the order by the Colorado Supreme Court denying
Writ of Certiorari, rendering this a final judgement.

GROUNDS ON WHICH THE JURISDICTION
OF THIS COURT IS INVOKED

28 U.S.C. § 1257(A): Certiorari jurisdiction for
review of state court criminal proceedings.

CONSTITUTIONAL PROVISIONS AND STATUTES
United States Constitution, Amendment V:

No person...shall be compelled, in any criminal
case, to be a witness against himself...

STATEMENT OF THE CASE

Petitioner was convicted of a state criminal
charge of felony menacing arising out of a domestic
dispute between him and his girlfriend, May Okihiro.
Petitioner and Okihiro had become involved in an
extended argument taking place over a two-day period
about the future of their relationship; the police were
not called but Okihiro left, taking her possessions with
her, when petitioner went to work. The police only
became involved in following up a subsequent “missing
person” report filed by petitioner: petitioner’s girlfriend
told the police, after they had located her, that petitioner
had threatened suicide during the course of the
argument, culminating in his allegedly threatening to
“take her with him” while holding a firearm.

Perry Maruca was then told by the police to come
to the station where, in an interview room, after being

told he was under arrest, he invoked his right to remain
2)

~*

EE ee |

silent, advising the inquiring officers unequivocally that
“he did not wish to speak” to them. The trial judge found
that no Miranda advisal was given.

Despite this invocation of the right to remain
silent, however, one of the officers persisted in
questioning petitioner, asking him “where his guns
were.” This inquiry led to petitioner admitting that he
had firearms, that he knew why the detective had asked
him about his guns, acknowledging that it might be
appropriate to turn those firearms over to the officers
for “safekeeping.”

After these incriminating responses, petitioner
and the two officers traveled to his home, where firearms
were observed and seized. In addition, during the course
of this firearms foray, petitioner allegedly made two
additional statements: that he had been “thinking of
taking himself out” and that “he knew that May
Okihiro had left him because she had taken her clothes
with her.” These two remarks were highly
incriminating. The first statement corroborated the
complaining witness’ account of the incident. The latter
utterance was inconsistent with the missing persons
report that petitioner had filed, the document which was
the genesis of the entire investigation.

Despite uncontroverted testimony that Perry
Maruca was questioned while under arrest in a police
interview room, a fact finding that no Miranda warning
was given, and uncontroverted testimony from one of
the officers that he questioned petitioner after the
accused unequivocally stated that he did not wish to
speak with the officers, the trial court held that the
information provided about the handguns was
admissible as “volunteered.” The trial judge disregarded
the Miranda and Mosley decisions entirely, denying

3.

suppression of the statements and subsequent seizures
on the theory that the question asked arose because of
the officers’ duty “to tell people why they are being taken
into custody!”

Despite the essentially uncontroverted facts, and
this curious ruling by the trial court which utterly
ignored the facts, the Colorado Court of Appeals affirmed
the conviction in a 2:1 decision. The Court of Appeals
reached an equally insupportable legal conclusion that
the constitutional violations which took place were
“harmless error.” The Colorado Supreme Court denied
certiorari, making this a final state court judgment.

ARGUMENT
THE STATEMENTS ATTRIBUTED TO PETITIONER AND
RESULTANT EVIDENTIARY OBSERVATIONS MADE BY
THE OFFICERS SHOULD NOT HAVE BEEN ADMITTED
AT TRIAL, AS SUCH EVIDENCE WAS OBTAINED
UNCONSTITUTIONALLY; THIS EVIDENCE WAS
HARMLESS BEYONDA REASONABLE DOUBT

In this state criminal trial, incriminating
statements by the accused and physical evidence seized
as a direct consequence of petitioner’s statements were
admitted at trial. The evidence at the suppression
hearing established the following essential facts
concerning the statements obtained and the consequent
seizures:

1) that petitioner was in custody, and was

not free to leave;

2) that petitioner was advised that he was
under arrest for felony menacing;

4.

3) that petitioner expressed a clear-cut
desire to remain silent;

4) that after invoking his right to remain
silent, petitioner was specifically
questioned without Miranda advisal and
in disregard of his invocation of the right
to remain silent concerning the location of
“his guns;”

5) that such questioning concerning the
whereabouts of guns took place several
days after the alleged incident, when there
was no danger to public safety;

6) that evidence about the statements
elicited and physical evidence thereafter
seized was admitted over defense
objections during petitioner’s trial; and
finally,

7) that the credibility of the complaining
witness was essential to the prosecution’s
case since no physical evidence
substantiated her story, credibility which
was enhanced by the evidence obtained
through custodial interrogation in
violation of Miranda.

These facts require that this unconstitutionally obtained
conviction be set aside.

This Court’s landmark decision in Miranda uv.
Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694
(1966), established the entitlement to be advised of the

5.

right to remain silent and the right to terminate
custodial questioning through the invocation of the Fifth
Amendment. In creating Miranda warnings, this Court
traced the historical underpinnings of the Fifth
Amendment, noting that: “These precious rights were
fixed in our Constitution only after centuries of
persecution and struggle.” Id. at 442. Miranda
established that a proper advisement of rights “is an
absolute prerequisite to interrogation,” but perhaps
more importantly here, definitively directed that if “an
individual is alone and indicates in any manner that he
does not wish to be interrogated, the police may not
question him.” /d. at 445, 471.

An aspect of this Court’s rationale in Miranda
was the recognition of the pervasive persuasiveness of
police interrogation procedures. One form of
interrogation discussed in Miranda was that of
displaying an “air of confidence in the suspect’s guilt,”
that the “guilt of the subject is to be posited as a fact.”
Id. at 450. Just such a technique was utilized here:
despite the invocation of the right to remain silent,
petitioner was specifically questioned about the
whereabouts of “his guns,” as though there was no doubt
that he in fact possessed firearms and that they had
been recently utilized in some sort of altercation with
his girlfriend.

As this Court made clear in Miranda, custodial
interrogation means “questioning initiated by law
enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action
in any significant way.” /d. at 444. There was no dispute
that Perry Maruca was asked to come to the police
station, was placed under arrest, and thereafter, stated
that he did not wish to speak with the officers yet
custodial interrogation followed. A more patent

6.

Miranda violation can hardly be imagined. As this Court
made manifest in Miranda:

Once warnings have been given, the

subsequent procedure is clear. If the

individual indicates in any .aanner, at any

time prior to or during questioning, that

he wishes to remain silent, the

interrogation must cease. Id. at 473-474.

This right to “cut off” questioning is critical:
without this entitlement, the coercive setting of custodial
interrogation has the effect of overcoming the free will
of persons accused of crime, thus producing
incriminating statements even after Miranda advisal
is given and the desire to remain silent has been
expressed. Id. at 474.

This prophylactic rule is designed to safeguard
an essential freedom. Thus, once the accused indicates
that he or she wishes to remain silent, all interrogation
must cease. All further police-initiated questioning is
proscribed even if the suspect “has been advised of his
rights.” Edwards v. Arizona, 451 U.S. 477, 484, 101
S.Ct. 1880, 68 L.Ed.2d 378 (1981).

Miranda and Edwards require that incriminating
information provided by a suspect subjected to custodial
interrogation after invocation of the right to remain be
excluded from trial. There are no ifs, ands, or buts about
it: the “merit of the Edwards decision lies in the clarity
of its command and the certainty of its application.”
Minnick v. Mississippi, 498 U.S. 146, 151, 111 S.Ct. 486,
112 L.Ed.2d 489 (1990).

Miranda, Edwards, and their progeny establish
indisputably that police officers are not permitted to
question suspects in custody after the accused invokes
the right to remain silent or requests an attorney. This
entitlement has been described in a variety of ways. For

3

example, in Lego v. Twomey, 404 U.S. 477, 488, 92 S.Ct.
619, 30 L.Ed.2d 618 (1972), this Court explained that
Miranda “excludes confessions fiowing from custodial
interrogations unless adequate warnings were
administered and a waiver was obtained.”
Similarly, in Berkemer v. McCarty, 468 U.S. 420,
104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), this Court stated:
In the years since the decision in Miranda,
we have frequently reaffirmed the central
principle established by that case: if the
police take a suspect into custody and then
ask him questions without informing him
of the rights enumerated above, his
responses cannot be introduced into
evidence to establish his guilt. Jd. at 429.
As the Berkemer opinion elucidates, the purpose of
Miranda is to guarantee that the police do not coerce
captive suspects into making incriminating statements,
and “as much as possible to free courts from the task of
scrutinizing individual cases to try to determine, after
the fact, whether particular confessions were voluntary.”
Id. at 433.
Thus, the breadth of Miranda:
The Miranda exclusionary rule, however,
serves the Fifth Amendment and sweeps
more broadly than the Fifth Amendment
itself. It may be triggered even in the
absence of a Fifth Amendment violation.
The Fifth Amendment prohibits the
prosecution in its case in chief only of
compelled testimony. Failure to administer
Miranda warnings creates a presumption
of compulsion. Consequently, unwarned
statements that are otherwise voluntary

8.

within the meaning of the Fifth

Amendment must nevertheless be

excluded from evidence under Miranda.

Thus, in the individual case, Miranda's

preventive medicine provides a remedy

even to the defendant who has suffered no

identifiable constitutional harm. Oregon

uv. Elstad, 470 U.S. 298, 307, 105 S.Ct.

1285, 84 L.Ed.2d 222 (1985).

The presumption of compulsion created by this
Court’s Elstad decision compels the conclusion that this
state court conviction was unconstitutionally obtained:
that damaging incriminating statements and the fruits
thereof were admitted into evidence despite having been
obtained in violation of Miranda and in the face of an
unequivocal invocation of the right to remain silent by
the accused.

In this case, the Colorado courts also thumbed
their judicial noses at Michigan v. Mosley, 423 U.S. 96,
96 S.Ct. 321, 46 L.Ed.2d 313 (1975). In that case,
Richard Mosley told the police after questioning began
that he did not want to answer questions. Although
questioning temporarily terminated, a short time later
subsequent questioning took place. In deciding the
Mosley case, this Court discussed Miranda, and
concluded as follows:

In sum, the Court held in that case that

unless law enforcement officers give

certain specified warnings before
questioning a person in custody, and follow
certain specified procedures during the
course of any subsequent interrogation,

any statement made by the person in

custody cannot over his objection be

Q.

admitted in evidence against him as a
defendant in trial, even though the
statement may in fact be wholly voluntary.

Id. at 99-100 (emphasis supplied).

This was the essence of the error committed by the state
courts here: a later finding of “voluntariness” is not and
has never been a substitute for Miranda advisal and
the duty to “scrupulously honor” a suspect’s invocation
of the right to remain silent.

There can be little doubt that the question asked
was custodial interrogation. Custodial questioning
includes those methodologies “that the police should
know is reasonably likely to evoke an incriminating
response from a suspect....” Rhode Island v. Innis, 446
U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980).
There was no claim by the inquiring officer that his
question was prompted by a concern for public safety or
by exigent circumstances.

On the contrary, the incident with Okihiro had
occurred days before, and the investigation had only
taken place because of the report filed by petitioner who
was concerned about the whereabouts of his girlfriend.
Indeed, at the time of inquiry, the police had no
information from the complaining witness to the effect
that shots had been fired during the incident, although
Okhiro’s story in that regard changed dramatically at
trial. Cf. New York v. Quarles, 467 U.S. 649, 104 S.Ct.
2626, 81 L.Ed.2d 550 (1984)(“public safety” exception
to the Miranda exclusionary rule).

This is not a case where the suspect personally
initiated further discussions with law enforcement
authorities. See, e.g., Oregon v. Bradshaw, 462 U.S.
1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983). Nor does
it involve a situation where the evidence was offered in

10.

rebuttal, to impeach the accused after testimony. See
Michigan v. Harvey, 494 U.S. 344, 110 S.Ct. 1176, 108
L.Ed.2d 293 (1990).

In this case the evidence obtained was introduced
in the prosecution’s case in chief, to help convict the
defendant, who did not testify at trial. The admissions
in this case flowed directly from “coercive activity” by
the State. See Colorado v. Connelly, 479 U.S. 157, 165,
107 S.Ct. 515, 93 L.Ed.2d 473 (1986). The claim that
petitioner subsequently “consented” to the search of his
home runs afoul of well-established case law to the
contrary. See, e.g., Florida v. Royer, 460 U.S. 491, 103
S.Ct. 1319, 75 L.Ed.2d 229 (1983).

The “harmless error” analysis by the majority of
the Colorado Court of Appeals was also fatally flawed,
premised as it was on the theory that the admission of
testimony concerning the statements and subsequent
evidentiary observations and seizures had no impact
on the jury, as two of the three appellate judges
concluded. This felony menacing conviction was
premised entirely on the credibility of the complaining
witness. Her believability was substantially bolstered
by the incriminating and inconsistent remarks
attributed to Perry Maruca and the officers’ own
observations about the existence of firearms in the home.

It is simply impossible to fairly conclude that
testimony about petitioner’s acknowledgement that: his
guns were properly turned over to the police for
“safekeeping;” that he had been contemplating suicide,
and his inconsistent comments about why his girlfriend
had moved out; had no effect on the verdict, let alone
that such evidence was harmless beyond a reasonable
doubt. See Chapman v. California, 386 U.S. 18, 87 S.Ct.
824, 17 L.Ed.2d 705 (1967). The statements attributed

to Perry Maruca included his concession that there was
a reason to turn his guns over to the police for
“safekeeping” and that he had been contemplating
suicide. These reputed remarks directly corroborated
the claim by his girlfriend that, while holding a firearm,
he claimed that he was going to “take her with him.”

Such evidence was hardly harmless; on the
contrary, this evidence was devastating, perhaps “the
most probative and damaging evidence” introduced into
evidence in this cases in a manner inconsistent with
“the thesis that ours is not an inquisitorial system of
criminal justice.” Arizona v. Fulminante, 490 U.S. 279,
292-294, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). As
this Court acknowledged in Fulminante:

A confession is like no other evidence.

Indeed, “the defendant’s own confession is

probably the most probative or damaging

evidence that can be admitted against

him... [T]he admissions of a defendant

come from the actor himself, the most

knowledgeable and unimpeachable source

of information about his past conduct.

Certainly, confessions have profound

impact on the jury, so much so that we may

justifiably doubt its ability to put them out

of mind even if told to do so.” Jd. at 296,

quoting Bruton v. United States, 391 U.S.

123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).
Thus, as this Court even more recently opined:

The inquiry, in other words, is not whether,

in a trial that occurred without the error,

a guilty verdict would surely have been

rendered, but whether the guilty verdict

actually rendered in this trial was surely

}?

a.

unattributable to the error. Sullivan v.
Lousiana, 508 U.S. __ 113 S.Ct. _, 124
L.Ed.2d 182, 189 (1993).

As the dissenting state appellate judge noted, the
testimony concerning the incriminating statements
attributed to petitioner and the evidentiary observations
by the officers corroborated the account of the incident
provided by the complaining witness, testimony
unsubstantiated by physical evidence or any other
evidence. No fair reading of the record could possibly
give rise to a supportable conclusion that the challenged
evidence was harmless beyond a reasonable doubt, that
the guilty verdict in petitioner’s trial was “surely
unattributable” to the improperly obtained evidence, as
is required under Sullivan. As a consequence, petitioner
prays for an order granting certiorari, to reverse the
judgment of the Colorado Court of Appea!s affirming
petitioner’s conviction of felony menacing.

Respectfully submitted,

Scotr H. Ropinson

GERASH, ROBINSON & MIRANDA, P.C.

1439 Court PLACE

DENVER, CoLoRADO 80202

TELEPHONE (303) 825-5400
Attorney for Petitioner

Perry Maruca

App. |

APPENDIX A
COLORADO COURT OF APPEALS
No. 93CA1033

THE PEOPLE OF THE STATE OF
COLORADO,
Plaintiff-Appellee,
v.
PERRY MARUCA,
Defendant-Appellant

Appeal from the District Court of Boulder County
Honorable Joseph Bellipanni, Judge
No. 92CR1078

(Filed October 6, 1994)
DIVISION IV JUDGEMENT AFFIRMED
Opinion by JUDGE HUME
Davidson, J., concur
Pierce, J., * dissents

Gale A. Norton, Attorney General

Stephen K. ErkenBrack, Chief Deputy Attorney General
Timothy M. Tymkovich, Solicitor General

Eric V. Field, Assistant Attorney General

Denver, Colorado

Attorneys for Plaintiff-Appellee

Gerash, Robinson & Miranda, P.C.,
Scott H. Robinson
Denver, Colorado

Attorney for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of
the Colo. Const. art. VI, Sec. 5(3), and §24-51-1105, C.R-S.
(1993 Cum. Supp.).

App. 2

Defendant, Perry Maruca, appeals from a judgment of
conviction entered upon a jury verdict finding him guilty of
felony menacing. We affirm.

I.

The principal issue raised by defendant concerns the trial
court's refusal to suppress testimony concerning weapons found
at the defendant's apartment and statements that defendant made
concerning his suicidal thoughts. The trial court ruled that this
evidence was obtained from defendant's volunteered statements.
We perceive no reversible error.

Defendant was asked by police to come to the police
station, where he was arrested for felony menacing. After his
arrest he became agitated and quite vocal, and there is evidence
to support the trial court's finding that he was not given Miranda
warnings at that time. After the arresting officers had calmed
him, one of them asked defendant where his guns were. Defen-
dant initially refused to answer that question, but after further
reflection and without further interrogation, he volunteered to
surrender his guns to the police for safekeeping.

The officers then accompanied defendant to his residence
where he turned the guns over to them and made a statement
regarding his previous thoughts of suicide. Still later, defendant
made a third statement to the effect that he knew the victim was
leaving him because she had "taken a lot of clothes with her."

At trial, the guns were not placed into evidence. One of
the officers testified about the suicide statement and both officers
testified that guns matching the description given by the victim
were recovered from defendant's apartment and that they were in
working order.

App. 3

Here, the evidence is sufficient to support the trial court's
finding that defendant's statements to police were voluntary and
not the product of coercion by virtue of the custodial setting in
which they were made. The statements made by defendant
during and after the visit to his home were volunteered rather than
being made in response to any police interrogation. They were
made long after the sole inquiry made by the officers at the police
station. Similarly, defendant's physical surrender of the guns at
his home was a volitional act performed after he had initially
exercised his right to remain silent and without further request or
inquiry by the officers.

Even if we assume that the initial statement indicating
defendant's willingness to surrender the guns was elicited in
violation of the Miranda rule, the U.S. Supreme Court has held
that, under some circumstances, the improper admission of such
evidence may be considered harmless if other evidence of the
accused's guilt isoverwhelming. See Arizona v. Fulminante, 499
U.S. 279, 111 S. Ct. 1246, 113 L.Ed.2d 302 (1991); Milton v.
Wainwright, 407 U.S. 371, 92 S.ct. 2174, 33 L.Ed.2d 1 (1972).

Here, the defense presented no evidence. The bulk of the
People's evidence consisted of the extensive testimony by the
victim who described in detail how defendant had threatened her
with the guns and indicated that he intended to commit suicide
and "take her with him." In view of this testimony, the brief
corroborative testimony of the police officers relating to the
weapons and to defendant's statements was harmless.

Our review of the record leaves us with no reasonable
doubt that the jury in this case would have reached the same
verdict without hearing the testimony of either officer and that
there was overwhelining evidence of guilt, fairly established by

App. 4

the state through the use of evidence which is not being
challenged. See Milton v. Wainwright, supra. See also Chapman
v. California, 386 U.S. 18,87 S.Ct. 824, 17 L.Ed.2d 705 (1967);
People v. Wilson, 709 P.2d 29 (Colo. App. 1985).

_ Therefore, we conclude that any error in the trial court's
refusal to suppress the statements made by defendant and the
ensuing testimony regarding the weapons that flowed from those
statements was harmless beyond a reasonable doubt.

Defendant also contends that he was denied a fair trial
when, during closing argument, the prosecutor implied that more
serious charges could have been filed and indicated his own
personal knowledge of the alleged embarrassment of the victim.
We disagree.

In closing argument, counsel is entitled to argue all reasonable
inferences from the facts and evidence, People v. Constant, 645
P.2d 843 (Colo. 1982), cert. denied, 459 U.S. 832, 103 S.Ct. 73,
74 L.Ed.2d 72 (1982). Counsel may, with propriety, comment
on how well and in what manner a witness measures up to the
tests of credibility set forth in the instructions. People v. Lucero,
677 P.2d 370 (Colo. App. 1983), cert. dismissed 706 P.2d 1283
(Colo. 1985). We perceive no reversible error in the statements
complained of here.

Judgement affirmed.
JUDGE DAVIDSON concurs.
JUDGE PIERCE dissents.

JUDGE PIERCE dissenting.
I respectfully dissent.

[ cannot agree that the testimony of the police officers in
this action was harmless beyond a reasonable doubt.

The case had to stand or fall on the credibility of the
complaining witness. A great deal of her testimony concerned
the actions and statements of the defendant regarding his threats
of suicide. The testimony also concerned descriptions of the
weapons and their location in the apartment.

The cross-examination also pointed out some discrepan-
cies. The most serious of which was that in her testimony the
complaining witness made references to a shot probably being
fired. She admitted that she had not informed the police of this
fact prior to her testimony. The testimony of the police officers,
the only other witnesses, gave strong support both to the location
of the weapons, their appearance, and that they were capable of
being fired. Their testimony also gave credance to the victim's
several statements regarding the intent to commit suicide by the
defendant. I would rule that the prosecution has not carried its
burden of proving that this evidence was harmless beyond a
reasonable doubt.

When a harmless error ruling is not available, the usual
rules regarding the type of interrogation involved here apply.

In Miranda y. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16
L.Ed.2d 694 (1966), The United States Supreme Court promul-
gated safeguards to protect the constitutional rights of persons
subjected to custodial police interrogation. After prescribing

App. 6

certain warnings which the police must give before questioning
begins, the court stated that if the individual indicates in any
manner, at any time prior to or during questioning, that he wishes
to remain silent, then interrogation must cease. That principle
was violated here.

In People v. Thomas, 839 P.2d 1174, 1179 (fn. 4) (Colo.
1992), the Colorado Supreme Court stated; "If statements are
made while in custody, such statements will be supressed if
Miranda warnings have not been given, whether or not they are
voluntarily made." See also Oregon v. Elstad, 470 U.S. 298, 105
S.Ct. 1285, 84 L.Ed.2d 222 (1985) (statements taken in violation
of Miranda, though voluntary, must be excluded from evidence
in the prosecution's case).

Here, it is clear that the defendant was under arrest and in
custody and had not been given Miranda warnings. He refused
to talk to police, but they continued their interrogation and asked
him where the guns were. All of his statements thereafter and the
recovery of the weapons were the fruit of the "poisonous tree"
and should have been supressed. Wong Sun v. United States, 371
U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); People v.
Breidenbach, 875 P.2d 879 (Colo. 1994).

Accordingly, I would reverse the judgment and remand
the cause to the trail court for a new trial.

App. 7

APPENDIX B
THE COURT OF APPEALS OF THE STATE OF COLORADO
Case Number 93CA 1033
ORDER
PEOPLE V PERRY MARUCA

Upon consideration of the Petition for Rehearing filed by the
Appellant herein, the Petition is hereby DENIED. Pierce, J.
would GRANT. It is ordered that issuance of the Mandate is
stayed to and including December 05, 1994 provided that if a
Petition for Writ of Certiorari is timely filed with the Supreme
Court of the State of Colorado, the stay shall remain in effect until
disposition of the cause by the Supreme Court.

BY THE COURT:
Hume, J.

Davidson, J.
Pierce, J.

DATED: November 03, 1994

(SEAL)

App. 8

APPENDIX C

SUPREME COURT, STATE OF COLORADO

CASE NO. 94SC696

CERTIORARI TO THE COLORADO COURT OF APPEALS, 93CA 1033
DISTRICT COURT, BOULDER COUNTY, 87CR625

ORDER OF COURT

PERRY MARUCA,

Petioner.

THE PEOPLE OF THE STATE OF COLORADO.

Respondent.

Upon consideration of the Petition for Writ of Certio
rari to the Colorado Court of Appeals, and after review of the
record, the briefs, and the judgment of said Court of Appeals,

IT IS THIS DAY ORDERED that said Petition for
Writ of Certiorari shall be, and same hereby is, DENIED

BY THE COURT, EN BANC, JUNE 5, 1995

Cc.

App. 9

Scott H. Robinson

GERASH, ROBINSON, & MIRANDA, P.C.
1439 Court Place

Denver, CO 80202

Eric V. Field
Assistant Attorney General
Criminal Enforcement Section

Honorable Joseph Bellipanni
Boulder County District Court
P.O. Box 4249

Boulder, CO 80306-4249

Clerk of the District Court
Boulder County District Court
P.O. Box 4249

Boulder, CO 80306-4249

Patrick H. Sanford, Clerk
Colorado Court of Appeals

(SEAL)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1605%3A1. Public record. Not legal advice.